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HomeMy WebLinkAbout2024-04-01 PL-CCI-2024-000003 Bill 121 Brian Fredrickson Testimony From: Brian Fredrickson To: WPCtestimonv Subject: Comments on PL-CCI-2024-000003 Date: Monday,April 1,2024 11:48:10 AM Attachments: Vacation Rental Ordinance 2024 Plan Commission Comments.odf Corporate Owned Vacation Rentals and Timeshares Every Neiahborhood on the Bia Island .odf Aloha, Could you please include these comments in the agenda packet for item PL-CCI-2024-000003 on the 04-04-04 Windward Planning Commission agenda? Mahalo, Brian Fredrickson 13-3540 Kumakahi St. Pahoa,HI 96778 13-Aw x sheet Pa", saga 96779 January 27,2023 (Resubmitted on 04-02-24) Ms. Heather Kimball, Chair Hawaii County Council 25 Aupum Street Hilo,Hawaii 96720 Mr. Dennis Lin, Chair Hawaii County Windward Planning Commission 25 Aupum Street Hilo,Hawaii 96720 Subject: Hawaii County's Flawed Transient Accommodation Rental Ordinance (PL-CCI-2024-000003) Dear Mr,Lin and fellow commissioners, My wife and I were among many participants in the one-way video presentations on Hawaii County's second-generation transient accommodation rental ordinance (TAR)rule. It is our belief that if Hawaii County enacts this ordinance anywhere near its current form,it is destined to end up in a courtroom where taxpayers are once again on the hook to pay for its' defense. Hawaii County lost on the merits in the Rosehill Petition and is clearly aware of what transpired in Honolulu County where a US District Court judge set aside a similar vacation rental ordinance.'None of the legal lessons provided these by decisions seem to be reflected in the language of the new Hawaii County ordinance. Hawaii County's new ordinance claims to regulate transient vacation rentals (TVR)due to professed impacts on neighborhood tranquility, agricultural land,housing availability and affordability, guest safety and local tax revenue.None of these claims are supported by data offered by Hawaii County. What is clear is that parts of the Hawaii County ordinance mimic the nation-wide effort by the American Hotel and Lodging Association (AHLA) and their allied groups to promote local TVR ordinances designed to maintain their monopoly control over tourism lodging. A 2016 New York Times article describes how the AHLA fashioned a long-term strategy to use model ordinances and media campaigns to pressure local governments into the adoption of stringent transient vacation rental ordinances.2 Some of the appealing features of the model ordinance to cash strapped local governments were high registration fees and penalties. This model ordinance was pared with a national media and communications strategy. The media firm,+Plus Communications,highlights this relationship with AHLA on their website and how it has successfully promoted TVR ordinances in several large US cities.'Many of the mechanisms in the model AHLA model ordinance are echoed in Hawaii County's second-generation TAR ordinance. These aspects include high fees for registration and annual renewals, excessive safety requirements,large fines, and requirements for disclosure,owner occupancy and near continuous owner availability. Assumptions: Hawaii County's TAR ordinance was introduced as fait accompli from the start. As such,it is likely that it will be adopted with only minor modifications to the ordinance's central provisions.Nevertheless,we join the many property owners on Hawaii Island who think this ordinance is a staggering intrusion into the 1IPage rights of property owners and how they can use,enjoy, and protect their homes and properties. The County is trying to force a significant number of private property owners into a position where they either have to sell their property,rent it long term or let it sit vacant for long periods of time. There are assumptions underlying all TVR ordinances,including the Hawaii County's version,which are briefly discussed in the sections that follow. These assumptions are not supported by a thorough examination of the evidence or any real dialogue with impacted stakeholders. This situation almost guarantees the ordinance will remain a point of contention for the foreseeable future. A Transient Vacation Properties are Only One of a Myriad of Factors Impacting Housing Affordability and Availability. One of the key narratives used against transient vacation rentals is that they have a negative impact on housing availability and affordability in Hawaii. If this assumption is true,then the Hawaii County's housing markets,vacancy rates and rents should have responded accordingly after the original transient vacation rental ordinance was implemented. However,except for a smaller increase in 2018-2019,the US Department of Housing and Urban Development(HUD) Fair Market Rent on the Big Island increased appreciably year-after-year from 2016 to 2022 (see Table I below) .' Of course,2018-2019 was the anomaly because Kilauea erupted on Hawaii Island destroying over 700 single family homes and displacing residents and renters throughout the Puna region. The Fair Market Rent also increased during the COVID-19 pandemic when tourism declined across Hawaii and nationally. Rental vacancy rates also declined when they should have increased after the Hawaii County implemented the original TVR ordinance. The popular narrative of placing the blame for housing availability and affordability on transient vacation rentals is overstated. Transient vacation rentals are one factor in the cost and availability of housing. According to National Association of Realtors,builders failed to keep pace with historical housing construction trends to the tune of 5.5 million unit's nationally.' This trend was exacerbated by the COVID- 19 pandemic where construction ground to a halt on Hawaii Island and elsewhere.Mortgage interest rates and inflation in housing materials have also contributed significantly to increased housing costs.' Interest rates alone have more than doubled from 2021 to 2022, essentially pricing out many first-time buyers and renters. According to the National Association of Realtors, 12% of all homes acquired in Hawaii in 2021 were purchased by institutional investors.6Institutional investors,including hotel chains like Marriot, are also purchasing transient vacation rental properties(see Attachment A).'These investors TVRs are clearly in a class by themselves. However,the rules proposed to address these properties have significant bleed- over impacts on individual homeowners with far less ambitious financial property management and use goals. Date Monthly Fair Annual% Hawaii Rental Market Rent for Increase or Vacancy Rates' 2- Bedroom Unit Decrease' 2016 $1,194 +3.7 10.6 2017 $1,271 +6.5 8.7 2018 $1,322 +4.0 8.5 2019 $1,346 +1.8 7.4 2020 $1,429 +6.2 7.5 2021 $1,469 +2.8 7.3 2022 $1,531 +4.2 Source': https://www.huduser.gov/portal/datasets/fmr.html#2022 Source': https://www.census.gov/housing/hvs/data/prevann.htmi 2 Page B. Priced Out of Hawaiian Vacations: There is almost no recognition or discussion of how the strict regulation of transient vacation rental properties impacts the availability of Hawaiian vacations and tourism lodging to a broad cross of the traveling public. According to a recent study,Hawaiian hotels are the highest earning hotels in the United States.'It goes without saying that restricting the supply of transient vacation rentals is in the interest of these hoteliers and drives up the price of a Hawaiian vacation. One estimate put the average cost of a ten day Hawaiian vacation on Oahu for a family of four at$13,493.9 How realistic is it to think average Americans can afford a Hawaiian vacation when the median household income in 2021 is$69,021?10 It is hard to imagine that 50% of the US population,or over 166 million people,would be in a position to spend at least 20% of their annual income on a Hawaiian vacation. Maybe it is by design that the state and Hawaii County favor high income earners as vacationers. The strict regulation of transient vacation rentals adds to this economic favoritism by forcing vacationers to stay in expensive hotels and to eat in restaurants rather than use kitchen facilities typically found in transient vacation properties. C'. TARs are Not Iniurious to the Preservation of Agricultural Land and Farming: The goal of preserving agriculture and agricultural land on Hawaii Island is not negatively impacted by the presence of TVRs or TARS. In fact,most small-scale farmers are dependent upon outside income sources to supplement their income and to preserve their way of life. "For fruit and vegetable farmers, off-farm earnings accounted for 43 percent of their income,while field crop farmers earned nearly all their income-84 percent of it—by working off-farm."11 As such,TARS provide farmers with an income stream that negates the need to travel or work off-site. It also preserves a valuable commodity to farmers,which is time. Agricultural land conversion and farming success on Hawaii Island and elsewhere are caused by a plethora of issues, almost none of which involve TARS or TVRs. According to a University of Hawaii policy paper, overall farming success in Hawaii has been hampered due a multitude of factors,including the exodus of the sugar industry,considerable fallow land,low mechanization rates and higher than average labor costs.12 Agricultural land conversions have been governed by the Land Use Commission (LUC) since the 1960s. As such,the conversion of agricultural land to housing or another use is controlled by the LUC's decisions.13 D. Are Arguments about Safety Considerations for Transient Vacation Rentals Accurate? Safety is frequently used as another motive for the stringent regulation of transient vacation rentals. The assumption is that a lack of frequent inspections or differences in construction standards logically leads to the conclusion that vacation rentals are less safe. It is unclear what"less safe"means in this context since all structures,including single family homes,hotels and other types of business have been subjected to a wide range of engineering and construction reviews and permit requirements by Hawaii County. While follow up inspections by public officials on private properties occurs infrequently,most insurance companies also do routine inspections of insured properties to help clients avoid problems with the potential for personal injury or property damage. Health inspections for transient vacation rentals are completely at odds with the reality of how people use these types of accommodations.Most vacationers use transient vacation rentals so they have some control over their own lodging arrangements and meals. If the rental is not maintained and sanitary,these facts will be reflected in the reputation ratings that follow each property. Transient vacation rentals are not commercial restaurants or food production facilities. As such, food safety is the responsibility of each individual user. So,unless the County wants to get in the business of policing food safety in single family homes,this is an inconsequential issue. 3 1 P a g e Safety is a significant consideration for Hawaii Island visitors. However,ocean safety is the most significant risk of injury and death by a wide margin. According to the Hawaii State Department of Health, drownings are the 3"leading cause of M type of death,behind heart disease and cancer, and the leading cause of injury-related death, ahead of suicide, falls,motor vehicle crashes, and other causes."14 Of course,visitors can be injured in any number of ways while using either hotel/motel or transient vacation rental properties. For instance, a man fell to his death from a Waikiki hotel while trying to climb from balcony-to-balcony.15 In another example, a two year old was injured when his "Crocs"were caught in a hotel escalator.16 Falls are a leading cause of non-fatal injuries across most age groups on Hawaii Island, according to a report by the Hawaii Department of Health." These falls can occur anywhere,including in both hotel/motel and transient vacation rental properties. E. Transient Vacation Rentals are Already Taxed at the Same Rates as Hotels The perception that transient vacation rentals are not legally required to pay the same taxes as other forms of tourism lodging is incorrect. Transient vacation rentals are required to pay the General Excise Tax (4.5%),the Transient Accommodation Tax(10.25%),and the newly enacted Hawaii County Transient Accommodations Tax(3%). These payments are required by state statute and local ordinance regardless of whether a separate ordinance exists for transient vacation rentals. One of the larger transient vacation rental on-line platforms,Airbnb,now provides information on hosts who brought in more than $2000 in revenue to Hawaii Department Taxation.18 The obligation to pay these taxes is equivalent between transient vacation rentals,time-shares,hotels, and other forms of lodging. Whether individuals or companies pay these taxes is an issue of compliance. Tax authorities already have the tools to enforce payment absent any additional authority provided by a special ordinance designed for transient vacation rentals. Summary: It appears that Hawaii County's proposed TAR ordinance favors the interest of the hotel/motel lobby at the expense of private property owners. The American Hotel and Lodging Association is engaged in a nation- wide effort to promote the strict regulation of TARS. Whether unwittingly or not,many local governments have bought into the rhetoric of this effort and have included major components of the industry's model TVR ordinances into their own programs. The draft Hawaii TAR ordinance has a raft of requirements requiring transient vacation rental owners to live on-site and to be available on a 24-hour basis to respond to potential complaints or emergencies. What other businesses require the property manager or owner to live in the next bedroom?There are lots of reasons why private property owners might wish to have the option to rent out or exchange their Hawaii properties to friends,relatives, and acquaintances. These motivations include preventing vandalism,theft, supporting property maintenance,meeting insurance standards for occupancy and having options to experience living elsewhere in the world. The desire to use private property owners like housing agencies is indefensible and does not produce the desired results. If given no choice,many property owners will let their homes sit empty rather than to foreclose all personal use. This choice will negatively impact Hawaii's economy and the thousands of jobs created by short-term transient vacation rental properties. Given that this ordinance was developed with a top-down public participation process,we expect it will be passed with some minor changes to the ordinance language. We would join the many property owners who would support a challenge to this entire ordinance and to the goals it supposedly achieves.My professional career involved going through lots of administrative hearings where new administrative rules were proposed. Each one of these rule changes required the development of a"Statement of Need and Reasonableness"where an administrative law judge was presented with evidence that the rule was a necessary and reasonable solution to a well-defined problem. Hawaii County has not come close to this 4 1 P a g e standard with this ordinance. There are lots of ill-defined assumptions about the need for these transient vacation rental ordinances. However,there is little in the way of any data or true dialogue designed to produce a reasonable ordinance that encourages economic competition,increases diversity in tourism lodging choices and is fair to property owners island wide. Cordially, Brian Fredrickson 5 1 P a g e Notes: �. Candace Cheung,"Judge Halts Ban on Short-term Rentals,"Courthouse News Service, October 14,2022, https://www.courthousenews.com/hawaii-j udge-halts-b an-on-short-term-rentals/.. '-New York Times,"Inside the Hotel Industry's Plan to Combat Airbnb,"April 16,2017, https://www.Mtimes.com/2017/04/16/technology/inside-the-hotel-industryplan-to-combat-airbnb.html. 'Plus Communications,"American Hotel and Lodging Associations Short Term Vacation Rental,"2022, https://pluspr.com/case-studies/ahla-str/. a. US.Department of Housing and Urban Development,"Fair Market Rents(40th Percentile Rents),"2023, hLtps://www.huduser.gov/portal/datasets/fmr.html#2022. 5.Zachary B.Wolf and Anna Bahney,CNN,"The housing mess,explained," September 17,2022, https://www.cnn.com/2022/09/17/politic s/housing-market-gue stions-what-matters/index.html. 6.National Association of Realtors,"Impact of Institutional Buyers on Home Sales and Single-Family Rentals,"May 2020,https://www.nar.realtor/research-and-statistics/research-reports/impact-of-institutional-buyers-on-home-sales- and-single-family-rentals. AAndrea Sachs,Washington Post,"Hotels Expand into Airbnb Territory by Offering Private Homes,"May 6,2022, https://www.washingtonpo st.com/trave l/2022/05/06/hotels-airbnb/. 8.Hawaii News Now,"Report: State of Hawaii has Highest Earning Hotel Businesses in Country,"October 17,2022, https://bigislandnow.com/2022/10/17/report-state-of-hawai%CA%BBi-has-highest-earning-hotel-businesses-in- coun /. 9.Jordan Fromholz,The Hawaii Vacation Guide,"How Much Does a Trip to Hawaii Cost for a Family of Four(2023 prices),"October 19,2022,hops://thehawaiivacationguide.com/trip-to-hawaii-cost-for-a-family. 10 United States Census, "Quick Facts:United States,"2023, hLtps://www.census.gov/guickfacts/fact/table/US/SEX255221.2023. `National Geographic,"Farmers Work a Second Shift to Supplement Income,"2016, https://www.nationalg.eo graphic.com/culture/article/farmers-work-a-second-shift-to-supplement-income. 12.Sarah Rehkamp,Michael J.Roberts,and James M.MacDonald,University of Hawaii,"The Agricultural Economic Landscape in Hawaii and the Potential for Future Economic Viability,"June 11,2021, https://www.google.com/url?sa=i&rctj&g=&esrc=s&source=web&cd=&cadf ja&uact=8&ved=OCAQQw7AJahcK Ewiwhtj iheH 8AhUAAAAAHOAAAAAQAg&url=https%3A%2F%2Fuhero.hawaii.edu%2Fw content%2Fuploads%2F2021%2F06%2FAgriculturalEconomicLandscapeInHawaii.pdf&psis=AOvVawl SOPdKNB8 T iN-82xtxEVg&ust=1674676090577319. 13.A. Santos-George,DD.Tran,C.A.Ferguson,and R.L.Bowen,University of Hawaii-Hilo,Journal of Hawaiian and Pacific Agriculture 1991,Volume 3,Number 1, "Urban Conversion of Hawaii's Agricultural Lands, 1975-89," 1991, https://hilo.hawaii.edu/panr/w-riting.php?id=233. `State of Hawaii,Department of Health,"Drowning Prevention,"2023, https://health.hawaii.gov/ipjMprevention/home/drowning-prevention/infonnation/. is.Emily Van de Riet,WSAZ News Channel 3,"Man falls to his death at Hawaii hotel while trying to climb from one balcony to another,police say,"March 24,2022,https://www.wsaz.com/2022/03/24/man-falls-his-death-hawaii-hotel- while-trying-climb-one-b alcony-another-police-saw. 6 1 P a g e 16 Star Advertiser,"Tourists sue Crocs footwear,Waikiki hotel over escalator injury,"August 18,2016, hops://www.staradvertiser.com/2016/08/18/business/business-breaking/tourists-sue-crocs-footwear-waikiki-hotel- over-escalator-injures. ".Hawaii Department of Health,"Injuries in Hawaii 2007-2011,"September 2012, hops://www.goo gle.com/url?sa=t&rctj&g=&e src=s&source=web&cd=&ved=2 ahUKEwivuYfOgbT8AhV- IIkEH VYkBNIQFnoECBYQAQ&url=hops%3A%2F%2Fhealth.hawaii.goy%2FiAMprevention%2Ffiles%2F2013% 2F 10%2FDatabook-FINAL-Sept-2012.pdf&usg=AOvVaw 1 T_adY-F5z6bi8MQjnkIT. 18.Jennifer Sokolowsky.Alvara MyLodge Taxes,"Airbnb to Begin Sharing Host Data with Hawaii Tax Authorities,"Nov 14, 2019,bqs://www.avalara.com/mylodgetax/en/bloc/2019/11/airbnb-to-begin-sharing-host-data-with-hawaii-tax-authorities.html. 7 1 P a g e Sample of Corporate Owned Vacation Rentals and Timeshares in Big Island Neighborhoods Attachment A (Comments on PL-CCI-2024-0000003) 0(21,046 unread-wateiwatche,X Vacation Home Rentelsl Hom X NEWI'Mala ID it Home an 5; x } X 0 8 https://homes-and-villas.ma rriott.corn/en/pro pertles/40173693-honokaa-new-mala-lani-homeon-acres-w-gas-grill?n—bc 0 5096 {,`( p y Q SS {] \;Getting Siartetl ®Amazorz com-Online... 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